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Discovery should not be refused for solicitor’s earlier breach of implied undertaking as to confidentiality

By: Mark Tottenham BL

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Supreme Court allows appeal from Court of Appeal, in a claim by a credit union against a firm of stockbrokers for alleged misrepresentation concerning the purchase of bonds, and: (a) determines that discovery should be ordered of documents that were relevant and necessary to the proceedings; and (b) determines that a breach of an earlier implied undertaking as to confidentiality should not be marked by refusal of discovery in circumstances where the person primarily at fault was not the party to the proceedings but the solicitor for that party.

Clarke CJ (nem diss): Access to private papers - civil litigation - disclosure of relevant documents - no right to avoid self-incrimination in civil cases - whether papers necessary and relevant - O. 31, r. 12 of the Rules of the Superior Courts - whether court had discretion to decline discovery - breach by solicitor acting on behalf of requesting party of an implied undertaking to make limited use of documentation - claim by credit union against firm of stockbrokers and investment advisors - alleged representation by stockbrokers that bonds were guaranteed and complied with certain legislation - Trustee (Authorised Investments) Order 1998 - full defence issued by stockbrokers - investigation by Irish Stock Exchange (ISE) into stockbroker's conduct of its business - disciplinary proceedings - whether ISE reports relevant to proceedings - relevant credit union not subject of report - amended statement of claim - alleged 'secret profit' in that stockbroker had acted as principal in sale of bonds - source of information concerning relevant bonds - leave to appeal - scope of obligations arising under an implied undertaking - seriousness of breach - extent of discretion to decline to order discovery after breach of implied undertaking - relevance and necessity 'the proper approach' - consequences of breach of implied undertaking - failure to provide an explanation for the breach - removal of litigious advantage or punitive sanction.

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